The issue to be determined was the interpretation of the words “outcome of an application” in section 22(3) of the Refugees Act in relation to extending asylum seeker permits. The applicants and respondents agreed that the word “may” in section 22(3) empowers the RRO to extend permits and this power is coupled with an obligation to exercise it “pending the outcome of an application”. However, the applicants argued that the logical reading of “outcome” is the final determination beyond which no further decision can be reached. This outcome, the applicants submitted, must include judicial review since there can be no final determination of an application until the end of a review under the Promotion of Administrative Justice Act (PAJA). The respondents argued that the “application” referred to in section 22(1) that says “pending the outcome of an application in terms of section 21(1)” is the application for refugee status made to an RRO, and “outcome” is the ultimate internal administrative decision.
The court held that refusing to extend permits during judicial review would be at odds with the principle of non-refoulement since asylum seekers would lose their entitlement to remain in the Republic lawfully and be at risk of deportation and return to the very persecution from which they were forced to escape. Thus the word ‘may’ as used in s 22(3) of the Refugees Act did not grant the Refugee Reception Office any discretion over issuing permits. The most constitutional interpretation of sections 22(1) and 22(3) is that the word “may” in section 22(3) does not confer a discretion, but rather empowers and enjoins the RRO to extend asylum seeker permits until the finalisation of judicial review.
The court held that there was an obligation to extend the permit pending the outcome of a judicial application for refugee status. The court held that this interpretation better afforded an asylum seeker constitutional protection while awaiting the outcome of the application.
Administrative aw; asylum seeker(s); asylum seeker permit; administrative justice; judicial review; extension of asylum seeker permit; discretion of Refugee Reception Officer
The applicants were asylum seekers, who were denied extension of permits after they exhausted internal remedies of review and appeal against rejection of their applications for permit (a temporary permit that entitles an asylum seeker to lawfully reside in the Republic for the duration of the application process). They sought extension of permits during the process of judicial view of rejection of their applications. Pending finalisation of the appeals and reviews, the Refugee Reception Officer (RRO) extended the permits. The appeals and reviews were unsuccessful. The applicants launched applications in the High Court under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) for the review and setting aside of the decisions refusing them refugee status. Claiming a lack of power under the Refugees Act, the RRO refused to extend the applicants’ permits pending finalisation of their PAJA reviews. They appealed to the Supreme Court of Appeal, which held that section 22(3) of the Refugees Act does confer on the Refugee Reception Officer (RRO) the discretionary power to extend an asylum seeker permit, even after the internal appeal and review processes have been exhausted, but the RRO is not required to do so.
The court set aside the orders of the SCA and High Court and declared that an RRO is obliged to extend a permit pending finalisation of the judicial review process.
The court held that it must interpret the statutory provisions in accordance with the purpose of the Refugees Act, which is to give effect to international refugee law, in particular, the principle of non-refoulement, and in a manner that promotes the spirit, purport and objects of the Bill of Rights.